Citation Nr: 1328993 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 11-26 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for lung cancer for accrued benefits purposes based on substitution of the appellant. 2. Entitlement to service connection for the cause of the Veteran's death. ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active military service from January 1951 to January 1954; he died in November 2009. The substitute appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan, which denied the claims on appeal. Upon the death of a Veteran, periodic monetary benefits to which he or she was entitled at death under existing ratings or decisions, or those based on evidence in the file at the date of death, due and unpaid for a period of not more than two years prior to death, may be paid to certain persons such as the Veteran's surviving spouse, children, or dependent parents. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2013). An amendment to 38 U.S.C.A. § 5121 removed the two-year restriction upon payment of accrued benefits, providing that a claimant may recover the full amount due prior to the date of the Veteran's death. This amendment applies only to deaths occurring on or after the date of enactment, which was December 16, 2003. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 104, 117 Stat. 2651 (Dec. 16, 2003). Effective October 10, 2008, the law was changed concerning substitution in the case of the death of a claimant. The newly revised statute provides that, "If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion." 38 U.S.C.A. § 5121A. The Veteran's surviving spouse, the appellant, filed an October 2010 motion for substitution; and it appears that the RO adjudicated her claims as such by the November 2010 rating decision on appeal. Therefore, the Board may proceed to adjudicate the claims for accrued benefits purposes based on substitution of the appellant. Id. In May 2012, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The evidence is in relative equipoise as to whether the Veteran's lung cancer was incurred in or aggravated by active service, specifically, his conceded exposure to asbestos. 2. The Veteran died in November 2009. The death certificate shows that the immediate cause of death was respiratory failure, due to or as a consequence of non-small cell carcinoma of the lung. CONCLUSIONS OF LAW 1. Lung cancer was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107, 5121 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.1000 (2013). 2. A disability incurred in service, lung cancer, caused or contributed substantially or materially to the Veteran's death. 38 U.S.C.A. §§ 1101, 1110, 1112, 1310, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.312 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In light of the favorable disposition, the Board finds that a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the appellant. Service Connection - Accrued Benefits In the instant case, the Veteran had a claim for VA benefits pending at the time of his death. In November 2009, immediately preceding his death, he filed a claim of entitlement to service connection for lung cancer, to include as secondary to asbestos exposure. As discussed above, the substitute appellant is his surviving spouse. She essentially contends that the Veteran's fatal non-small cell carcinoma of the lung was caused by exposure to asbestos while he was stationed at Fort Benning, Georgia, and service connection for lung cancer is thus warranted. In order to establish service connection, the evidence must generally show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Alternatively, under 38 C.F.R. § 3.303(b), the second and third Shedden/Caluza elements can be established through a demonstration of continuity of symptomatology. Where the Veteran asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, the Veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Malignant tumors are listed as chronic conditions under 38 C.F.R. § 3.309(a). Therefore, any malignant tumors can be granted service connection on the basis of continued symptomatology since service under 38 C.F.R. § 3.303(b). In addition, such may be presumed to have been incurred in service if it becomes manifest to a degree of 10 percent or more within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board notes that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA promulgated any regulations in regard to such claims. VA has, however, issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The DVB circular was subsumed verbatim as § 7.21 of Adjudication Procedure Manual, M21-1, Part VI. This has now been reclassified in a revision to the Manual at M21- 1MR, Part IV, Subpart ii, Chapter 2, Section C. See also VAOPGCPREC 4-00 (Apr. 13, 2000). In this regard, the M21-1 MR specifically includes lung cancer in its non-exclusive list of asbestos-related diseases/abnormalities. See M21-1 MR, part VI, Subpart ii, Chapter 2, Section C, 9 (b). The appellant contends that the Veteran was exposed to asbestos at Camp Merrill- U.S. Army Infantry Center at Fort Benning, Georgia where he was stationed for the majority of his active military duty. The Veteran's military operational specialty was that of parachute infantryman. The appellant argues that the Veteran's only exposure to asbestos was at Fort Benning. The appellant supplied internet research from the Environmental Protection Agency noting that as of March 1992, Camp Merrill-U.S. Army Infantry Center at Fort Benning, Georgia, was included on the National List of Asbestos Landfills. The appellant also supplied a March 2010 report of the U.S. Army Audit Agency indicating that federal stimulus funds were being used to remediate asbestos in the barracks at Fort Benning. While the Veteran's service records were destroyed in the 1973 fire at the National Personnel Records Center (NPRC), of record is a December 1953 service document indicating that the Veteran was given a final secret clearance while stationed at the Infantry Center at Fort Benning. A September 1952 certificate demonstrates the Veteran's completion of a light and heavy weapons infantry leader course at Fort Benning. In an April 2011 statement, the appellant provided the Veteran's post-service occupational history, including work as an auditor and a salesperson, each without exposure to asbestos. Also of record are July 2007 treatment records indicating that the Veteran was a 50-pack year smoker, with cessation four weeks prior; and an October 2009 treatment record indicating that the Veteran was a 90-pack year smoker, with cessation in 2008. The first requirement for direct service connection, evidence of a current disability, has been met. There is no dispute that the Veteran had lung cancer. The claims file contains voluminous treatment records detailing the course of the Veteran's lung cancer. A September 2007 pathology report indicates a positive result for carcinoma in the right upper lobe of the lung. Subsequent to the September 2007 diagnosis, the Veteran underwent extensive treatment, including numerous hospitalizations, for lung cancer. The second requirement for direct service connection, evidence of disease or injury in service, is also met. Based on the above, the Board concedes that it is as likely as not that the Veteran was exposed to asbestos, most likely in the barracks of Fort Benning, during his service from January 1951 to July 1954. The Board now turns to a discussion of the third requirement of direct service connection, a causal relationship between the Veteran's lung cancer and service, specifically, in-service asbestos exposure. A November 2009 letter from the Veteran's treating physician for his stage IV non-small cell lung cancer, noted that he had treated the Veteran since October 2007 and that it was his medical opinion that the Veteran's lung cancer was at least as likely as not related to the Veteran's exposure to asbestos during his military service. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, there is reduced weight assigned to the above etiological opinion, as it was rendered without an explanation; however a medical opinion with reduced probative weight is not fatal to the claim. Additionally, the Veteran's referring physician, in an October 2009 statement and again in a December 2010 follow-up statement, noted that asbestos exposure is an independent risk factor for the development of bronchogenic carcinoma and certainly could have contributed to the development of the Veteran's lung disease. Statements that are speculative from doctors, as the above statements, are, for all intents and purposes, inconclusive as to the origin of a disorder generally cannot be employed as suggestive of a linkage between the disorder and the Veteran's military service. Warren v. Brown, 6 Vet. App. 4, 6 (1993); Sklar, 5 Vet. App. 104, at 145-6. By the same token, an absolutely accurate determination of etiology is not a condition precedent to granting service connection. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). That is to say, use of cautious language does not always express inconclusiveness in a doctor's opinion. Rather, the opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Lee v. Brown, 10 Vet. App. 336, 338 (1997). The Federal Circuit Court has additionally held in Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008), that a determination regarding service connection requires consideration of all pertinent medical and lay evidence, including medical opinions that do not state definitively when a particular disorder or condition began; therefore, classifying such a medical opinion as "non-evidence" is "troubling." In this case, the above etiological opinion, rendered using cautious or inconclusive language, is not fatal to the claim. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The analysis may be stated briefly, and in light of the favorable decision, the Board need not conduct an analysis of the probative value of the lay statements of records. While there is no evidence or assertion that the Veteran developed lung cancer during service or to a compensable degree within one year of separation from service, or demonstrated continuous symptoms of lung cancer from separation from service, the evidence is in relative equipoise as to whether his lung cancer is related to his conceded in-service asbestos exposure based on all of the evidence outlined above. While neither private opinion is alone sufficient to serve as a sole basis for granting service connection, the Board considered that that the Veteran's private physicians treated the Veteran for many years and were aware of his pertinent medical history. The Board also considered that the Veteran's post-service employment history was silent for asbestos exposure, he had a history of smoking, and significantly, VA has considered lung cancer an asbestos-related disease. It is also significant that there is no negative medical evidence of record. In this circumstance, all reasonable doubt is resolved in the appellant's favor and the claim of entitlement service connection for lung cancer, for accrued benefits purposes based on substitution of the appellant, is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Cause of Death The Veteran's November 2009 death certificate indicates that he died from respiratory failure due to or as a consequence of non-small cell carcinoma of the lung. The appellant seeks service connection for the cause of the Veteran's death. Service connection may be established for the cause of a Veteran's death when a service-connected disability was either the principal or a contributory cause of death. See 38 C.F.R. § 3.312(a). A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. See 38 C.F.R. § 3.312(b). A contributory cause of death must be causally connected to the death and must have contributed substantially or materially to death, combined to cause death, or aided or lent assistance to the production of death. See 38 C.F.R. § 3.312(c)(1). For a service-connected disability to constitute a contributory cause, it must contribute substantially or materially; it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. See 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. (Continued on the next page) The analysis may be stated briefly. As determined above, service connection for lung cancer is warranted, for accrued benefits purposes based on substitution of the appellant. In essence, service connection was in effect at the time of the Veteran's death in November 2009. In light of the fact that the Veteran was service connected for lung cancer at the time of his death and non-small cell carcinoma of the lung, or lung cancer, was listed on his death certificate as a cause of his death, service connection for the cause of the Veteran's death is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. 49, at 53. ORDER Service connection for lung cancer, for accrued benefits purposes based on substitution of the appellant, is granted. Service connection for the cause of the Veteran's death is granted. ____________________________________________ S.L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs